Area of Law: Wills, Estates and Powers of Attorney
Answer # 160
Living WillsRegion: Ontario Answer # 160
A Living Will is a document, or can form a part of a document that allows you to leave instructions about your future medical treatment, should you become incapable of doing so at a later date. It can take effect if you become incapacitated by illness, injury, or old age.
In particular, a Living Will lets you decide whether you want to be kept alive by medical machines if it is unlikely that you will recover. In it, a person will generally indicate what type of treatment they are willing to undergo, and at what point they would like medical treatments to be discontinued.
Is a Living Will the same as a Power of Attorney for Personal Care ?
Although the two are often confused, a Living Will is not the same as a Power of Attorney for Personal Care. A Power of Attorney for Personal Care is a legal document in which you name a specific person to make personal care decisions on your behalf. Personal care can include decisions about many things, such as health care, medical treatment, diet, housing, clothing, hygiene, and safety. In contrast, a Living Will sets out only your wishes about your health care and it does not need to name anyone to act on your behalf.
A Living Will can be a stand-alone document, but is usually included as part of a Power of Attorney for Personal Care.
Is a Living Will the same as a Will ?
Even though it is called a Living Will, it is not the same as a Will nor does it form part of a Will. A Will is a legal document that you create in order to deal with your assets and the custody of minor children in the event of your death. A Will does not take effect until the person dies, whereas a Living Will is only in effect when the maker is alive, and only deals with health care decisions.
Is a Living Will enforceable ?
A Living Will may not be binding. Whether a Living Will is a legally enforceable document is unclear. In many cases, where someone in the family has strong objections to the wishes set out in the Living Will, such as for medical treatment to be discontinued, those wishes may not actually be carried out. Having said that, there have been cases where the court has determined that the Living Will is enforceable notwithstanding objections from the family. At the very least, a Living Will can be very helpful to give direction to your family members and medical practitioners.
For more information on Powers of Attorney and Living Wills, visit the Ministry of the Attorney General website. Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, or if you would like to leave instructions for your health or medical care, you should consult a lawyer.
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